A weblog for students engaged in doctoral studies in the field of human rights. It is intended to provide information about contemporary developments, references to new publications and material of a practical nature.

Thursday, 27 February 2014

The French Cour de cassation ruled
yesterday that three Rwandans suspected of genocide could not be extradited to
Rwanda to stand trial. The reason given for the Court was that the crime of genocide
did not exist in Rwandan law at the time of the offence, in 1994. This is a
highly technical objection, vulnerable to attack as a question of law, and a
ruling that will only confirm suspicions that the French legal system lacks any
determination to bring perpetrators of genocide to justice.

At the time of 1994 genocide, Rwanda had
ratified the Convention. Because of its constitutional framework, an
international treaty was directly applicable before the national courts. Thus,
the crime of genocide most certainly existed under Rwandan law in 1994.
However, legislation setting out the penalty for the crime was not adopted
until 1996. The legislation was deemed to be retroactive in effect. In Rwanda,
many thousands have been prosecuted on this basis for genocide committed in
1994. The world has praised Rwanda for its efforts to bring perpetrators to
justice on this basis.

The problem of retroactivity of the
Rwandan legislation is adequately addressed by article 11(2) of the Universal
Declaration of Human Rights: ‘No one shall be held guilty of any penal offence
on account of any act or omission which did not constitute a penal offence,
under national or international law, at the time when it was committed.’ The
problem of the lack of a penalty in force in 1994 is adequately addressed by
the fact that penalties were provided under Rwandan law at the time for the
underlying crimes of killing and causing serious bodily harm.

How can France’s position be squared
with its own support for the International Criminal Tribunal for Rwanda, where
suspected génocidaires have been prosecuted on the basis of legislation adopted
after the crimes were committed? France was one of the four States to create
the International Military Tribunal in 1945, an institution that prosecuted
Nazi offenders on the basis of legislation adopted after the crimes were
committed. France was a party to the Treaty of Versailles where the German
Emperor was arraigned to stand trial for ‘a supreme offence against
international morality and the sanctity of treaties’, a crime that had not
previously been codified. Double standards?

The International Criminal Tribunal for
Rwanda has transferred offenders to stand trial before Rwandan courts without
being troubled by this retroactivity issue. The courts of other countries –
Canada and Sweden for example – have agreed to extradite suspects to Rwanda
without this difficulty arising.

At the time of the 1994 genocide, France
supported the Rwandan regime. I vividly recall encountering French forces in
the country when I visited Rwanda in early 1993 as part of a fact-finding
mission. Apart from the intriguing issue as to whether any French complicity in
the genocide of 1994 can ever be established, one thing seems quite clear:
France had extraordinary influence over the regime. It certainly could have
done much more than it did to pressure those in power in Kigali in April and
May 1994 to stop the massacres.

In 2007, the International Court of
Justice held that Serbia had a duty under the Genocide Convention to use its
influence on the Bosnian Serbs in order to prevent genocide. Surely the same
principle applies to France in its relationship with Rwanda.

When universal jurisdiction proceedings
are held in France, Spain, Belgium and other European states, Rwanda and other
African countries have complained that double standards are at work. They argue
that such trials are tinged with hypocrisy because of the reluctance of such
States to apply international justice in a principled manner. Who can blame
them, when there are judgments like the one issued yesterday?

Tuesday, 25 February 2014

Cinema and Human Rights Days is running this year with a full weekend programme of screenings and discussion at the Gordon Square Cinema, Birkbeck. The event takes place on Friday evening, 14th March, Saturday 15th March and Sunday, 16th March, 2014, and is a collaboration between Birkbeck, Middlesex University, the Huston School of Film and Digital Media at the University of Galway, Ireland and is supported by Open Society Foundations.

Cinema and Human Rights Days seeks to provoke discussion and debate about the impact of cinema in documenting political struggles and exposing human rights abuses and there will be a number of speakers introducing screenings and contributing to sessions. Some of the issues discussed will be: What difference do films, videos and digital media make to public debates about human rights issues? How can we begin to assess the work of filmmakers and political activists using film and video to campaign for justice and democracy, or the use of digital media for human rights advocacy on the internet? Who are the subjects of human rights films and what is the nature of human rights discourse in film? One of the key themes this year for Cinema and Human Rights Days is the recent spate of films that addresses the role of perpetrators of crimes against humanity.Speakers include:

· William Schabas, Professor of International Law at Middlesex and author of many books on human rights law, who will introduce the Universal Declaration of Human Rights through film;· Rod Stoneman, Professor of Film and Director of the Huston Centre of Film and Digital Media, film producer and author, and former deputy Commissioning Editor of the Independent Film and Video Department of Channel 4 Television and Chief Executive of Bord Scannán na hÉireann/ the Irish Film Board, who will discuss The Freedom to Speak.· Other speakers include, Sue Clayton, Gareth Evans, Dr. Jacqueline Maingard, Dr. Emma Sandon.

There will be a feature-length screening each day, as well as short films and extracts.Cinema and Human Rights Days will start by hosting a screening of the award-winning Best Documentary in the BAFTA 2014 and Oscar-nominated Director’s Cut of The Act of Killing (159 mins) directed by Joshua Oppenheimer about perpetrators of mass killings in Indonesia in 1965-66. The film will be introduced by Gareth Evans, writer, producer and curator of the Whitechapel Gallery.Saturday lunch-time, filmmaker Sue Clayton will show her short film, Hamedullah (23 mins) which highlights the plight of child refugees in Britain, by focussing on an Afghan boy who was deported from the UK and sent back to Afghanistan. She will present other material she has filmed about children refugees in Britain, and discuss how her films have led to campaigns to change the law in Parliament.Saturday evening’s screening will be an opportunity to see the new film by South African filmmaker, Marc Kaplan, TheVillageunder the Forest, on the eradication of the village of Lubya in Palestine, through the planting of a forest paid for by the Jewish National Fund. It will be introduced by Dr. Jacqueline Maingard, University of Bristol, who will introduce the film by discussing the director’s films on perpetrators of apartheid atrocities, and his commitment to human rights and social justice..The Sunday afternoon screening will be John Pilger’s new film, Utopia (2013) about indigenous Australians’ struggle for equality and justice. This polemical and controversial film screened in Australia and recently on British television, will be introduced by one of the film’sproducers.

The event is free of charge. However places are limited, so registration is essential. You need to register for each day you wish to attend.

See the full programme and please register through the following link: http://www.bbk.ac.uk/arts/news/cinema-and-human-rights-days

Mario Silva served for many years as a
Member of Parliament in Canada. Last year, he was chair of the The
International Holocaust Remembrance Alliance. The book is based upon the
doctoral thesis that he successfully defended at the Irish Centre for Human
Rights.

Monday, 24 February 2014

My University is offering doctoral fellowships for students in a range of areas, including international human rights law and international criminal law. There are very attractive fellowships that provide funding for the degree, including both tuition and subsistence. I would encourage readers of the blog to apply, and to spread to word to other who may be interested.My personal hope is that one or two of these fellowships will be awarded to a student who will complete the degree under my supervision.Note that the deadline for applications is 14 March. For more information: http://www.mdx.ac.uk/research/applications/fees/bursaries/law.aspx.

Thursday, 13 February 2014

Further evidence of the decline in
capital punishment in the United States comes with the announcement by Governor
Inslee of Washington State of a moratorium on capital punishment.

According to a statement by the
International Commission against the Death Penalty, Governor Inslee said the
moratorium would last for as long as he is in office. Following months of
review including meetings with victims’ families, law enforcement experts and
prosecutors, he concluded that there are ‘too many doubts’ about capital
punishment. According to the Governor, the capital punishment system ‘does not
deter crime, costs citizens millions of dollars more than life in prison
without parole’, is ‘unequally applied’ and ‘exposes families to multiple
decades of uncertainty’.

Governor Inslee told reporters that he
hopes the moratorium will allow Washington State to ‘join a growing national
conversation about capital punishment’, and that he would support decision by
lawmakers for a permanent ban on the death penalty, the statement said.

‘This is significant progress and we
congratulate Governor Inslee for his leadership in the decision to declare a
moratorium of capital punishment in Washington State. It is another sign that
the death penalty is steadily retreating in the US as more states bring their
justice systems into the modern era’, said Federico Mayor, President of the
International Commission against the death penalty.

Governor Inslee said that in the 33
years since Washington State enacted its capital punishment laws, 60% of 32
people sentenced to death have had their sentences overturned. ‘When the
majority of death penalty sentences lead to reversal, the entire system must be
called into question’, he said.

The importance of such developments
cannot be underestimated. According to the case law of the Supreme Court of the
United States, the ‘evolving standards of decency’ that govern interpretation
of the eighth amendment are to be assessed with reference to developments in the
law and practice of the States. In 2005, the Supreme Court declared the
juvenile death penalty to be unconstitutional based upon a discernable pattern
involving a relatively modest number of States.

Friday, 7 February 2014

In
February 2013, the Appeals Chamber of the International Criminal Tribunal for
the former Yugoslavia ‘enter[ed] … a verdict of acquittal’ in the case of
Momčilo Perišić.
The Statute of the International Criminal Tribunal for the former Yugoslavia
provides for appeal of a conviction, a procedure that was introduced in order
to comply with article 14(5) of the International Covenant on Civil and
Political Rights (‘Everyone convicted of a crime shall have the right to his
conviction and sentence being reviewed by a higher tribunal according to law.’)
It does not allow reconsideration of an acquittal that has become definitive
following an Appeals Chamber decision because of a changed interpretation of
the law.

A
few days ago, the Prosecutor of the Tribunal applied for ‘reconsideration’ of
the decision to acquit Perišić. According to a Statement issued by the Office of the
Prosecutor,

This
motion was filed, after careful deliberations, by my Office as a direct
consequence of the ŠainovićAppeal Judgement delivered on 23 January 2014. In that
Judgement, the ICTY Appeals Chamber unequivocally overturned the Perišić Appeal Judgement’s flawed
holding that “specific direction” is an element of aiding and abetting
liability. It was on the basis of this ‘specific direction’ requirement that
the aiding and abetting convictions entered by the Trial Chamber were reversed
and Mr. Perišić
was erroneously acquitted on appeal.

Rule
119 of the Rules of Procedure and Evidence allows for ‘review’ of a decision by
the Appeals Chamber: ‘Where a new fact has been discovered which was not known
to the moving party at the time of the proceedings before a Trial Chamber or
the Appeals Chamber, and could not have been discovered through the exercise of
due diligence, the defence or, within one year after the final judgement has
been pronounced, the Prosecutor, may make a motion to that Chamber for review
of the judgement. If, at the time of the request for review, any of the Judges
who constituted the original Chamber are no longer Judges of the Tribunal, the
President shall appoint a Judge or Judges in their place.’

But
the Prosecutor is not claiming that any ‘new fact’ has been discovered. Rather,
the Prosecutor is arguing that the law has changed as a result of the legal
basis of the acquittal of Perišić being ‘unequivocally overturned’. But was it?

First,
there was a dissenting opinion in Šainović. Under the circumstances,
the word ‘unequivocal’ is probably not appropriate. Second, Judge Ramaroson,
who sat in both Perišić and Šainović agreed with the majority
judgment in both cases. I would not use the word ‘unequivocal’ to describe such
a strange situation. Judge Ramaroson might have enlightened us with a separate
opinion to explain the change of heart. Third, the Appeals Chamber cannot
‘overturn’ the Appeals Chamber. It may seem paradoxical, but by refusing to
follow the funding in Perišić the judges in Šainović may inadvertently have undermined the authority of
their own judgment. Who is to say that yet another five-judge panel of the
Appeals Chamber will not ‘overturn’ Šainović, perhaps restoring Perišić or possibily setting out a third vision of aiding and
abetting? It seems more accurate to describe what has happened is that four
judges of the Appeals Chamber disagree with four other judges of the Appeals
Chamber (really, three judges, because one of them disagrees with herself).

The
real problem with the Prosecutor’s motion concerns the rights of the accused.
According to article 14(7) of the International Covenant on Civil and Political
Rights, ‘No one shall be liable to be tried or punished again for an offence
for which he has already been finally convicted or acquitted in accordance with
the law and penal procedure of each country.’ The same rule is formulated
slightly differently in article 4 of Protocol No. 7 to the European Convention
on Human Rights:

1.
No one shall be liable to be tried or punished again in criminal proceedings
under the jurisdiction of the same State for an offence for which he has
already been finally acquitted or convicted in accordance with the law and
penal procedure of the State.

2.
The provisions of the preceding paragraph shall not prevent the re-opening of
the case in accordance with the law and penal procedure of the State concerned,
if there is evidence of new or newly discovered facts, or if there has been a
fundamental defect in the previous proceedings, which could affect the outcome
of the case.

3.
No derogation from this Article shall be made under Article 15 of the
Convention.

Can
the Prosecutor argue that when Perišić was acquitted by the Appeals Chamber there was ‘a
fundamental defect in the proceedings’? There is not much in the way of
judicial interpretation on this expression. Recently a Chamber of the European
Court of Human Rights held that there was such a ‘fundamental defect’ where an
acquittal was based upon an amnesty (Marguš
v. Croatia, no. 4455/10, § 74, 13 November 2012). The case is currently pending
before the Grand Chamber. But four judges disagreeing with four judges cannot
be described as a ‘fundamental defect in the proceedings’.

The
rule against double jeopardy (ne bis in idem) is part of a larger norm known by
the term res judicata. It is almost certainly a general principle of law in the
sense this expression is employed by article 38 of the Statute of the
International Court of Justice. There is something profoundly troublesome about
reconsideration of a final acquittal because a new judicial finding concerning
legal interpretation is at variance with an earlier one.

Against
the right of the accused to protection against such double jeopardy, the
Prosecutor invokes the rights of victims to have justice done. He says that
‘[r]econsidering the Perišić Appeal Judgement will help secure justice for the
victims, which is the key objective of my Office, the Tribunal and international
criminal justice as a whole.’

But
fair proceedings should also be a key objective of the Prosecutor. There is
something profoundly unfair about the suggestion that an acquittal, decided by
four judges of an Appeals Chamber, can be reversed a year later because four
other judges adopt a different interpretation of the law.

The
mantra of ‘justice for the victims’ should not be used to trump the rights of
the accused in such circumstances. As a result of these controversial
decisions, not to mention other bizarre developments like the statement of
Judge Harhoff, his removal as a judge, and the replacement of a judge in a
pending trial well into the deliberation stage, the legacy of the International
Criminal Tribunal for the former Yugoslavia has been tarnished. Reconsideration
of an acquittal because there of a change in judicial interpretation risks
causing further damage to the reputation of this troubled institution.

The Editorial Team

W. Schabas, Y. McDermott, J. Powderly, N. Hayes

William A. Schabas is professor of international law at Middlesex University in London. He is also professor of international criminal law and human rights at Leiden University, emeritus professor human rights law at the Irish Centre for Human Rights of the National University of Ireland Galway, and an honorary professor at the Chinese Academy of Social Sciences, in Beijing and Wuhan University. He is the author of more than 20 books and 300 journal articles, on such subjects as the abolition of capital punishment, genocide and the international criminal tribunals. Professor Schabas was a member of the Sierra Leone Truth and Reconciliation Commission. He was a member of the Board of Trustees of the United Nations Voluntary Fund for Technical Cooperation in Human Rights and president of the International Association of Genocide Scholars. He serves as president of the Irish Branch of the International Law Association chair of the Institute for International Criminal Investigation. He is an Officer of the Order of Canada and a member of the Royal Irish Academy. Here is the full c.v.

Dr YvonneMcDermott is Senior Lecturer in Law at Bangor University, UK, where she is also Director of Teaching and Learning and Co-Director of the Bangor Centre for International Law. Yvonne is a graduate of the National University of Ireland, Galway (B. Corp. Law, LL.B.), Leiden University (LL.M. cum laude) and the Irish Centre for Human Rights (Ph.D.). Her research focuses on fair trial rights, international criminal procedure and international criminal law. She is the author of Fairness in International Criminal Trials (Oxford University Press, 2016).

Niamh Hayes has been the Head of Office for the Institute for International Criminal Investigations (IICI) in The Hague since September 2012. She is about to complete her Ph.D. on the investigation and prosecution of sexual violence by international criminal tribunals at the Irish Centre for Human Rights, National University of Ireland Galway. She previously worked for Women's Initiatives for Gender Justice as a legal consultant, and as an intern for the defence at the ICTY in the Karadzic case. She has lectured on international criminal law and international law at Trinity College Dublin and, along with Prof. William Schabas and Dr. Yvonne McDermott, is a co-editor of The Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate, 2013). She is the author of over 45 case reports for the Oxford Reports on International Criminal Law and has published numerous articles and book chapters on the investigation and prosecution of sexual and gender-based violence as international crimes.

Joseph Powderly is Assistant Professor of Public International Law at the Grotius Centre for International Legal Studies, Leiden University. Between September 2008 and January 2010, he was a Doctoral Fellow/Researcher at the Irish Centre for Human Rights, where he worked, among other projects, on a Irish Government-funded investigation and report into the possible perpetration of crimes against humanity against the Rohingya people of North Rakhine State, Burma/Myanmar. He is currently in the process of completing his doctoral research which looks at the impact of theories of judicial interpretation on the development of international criminal and international humanitarian law. The central thesis aims to identify and analyze the potential emergence of a specific theory of interpretation within the sphere of judicial creativity. Along with Dr. Shane Darcy of the Irish Centre for Human Rights, he is co-editor of and contributor to the edited collection Judicial Creativity in International Criminal Tribunals which was published by Oxford University Press in 2010. He has written over 80 case-reports for the Oxford Reports on International Criminal Law, as well as numerous book chapters and academic articles on topics ranging from the principle of complementarity to Irish involvement in the drafting of the Geneva Conventions. In December 2010, he was appointed Managing Editor of the peer-reviewed journal Criminal Law Forum. His research interests while focusing on international criminal and international humanitarian law also include topics such as the history of international law and freedom of expression.

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Interested in PhD studies in human rights?

Students interested in pursuing a doctorate in the field of human rights are encouraged to explore the possibility of working at Middlesex University under the supervision of Professor William A. Schabas and his colleagues. For inquiries, write to: w.schabas@mdx.ac.uk.